O alcance do precedente como fonte de direito no ordenamento jurídico brasileiro

Abstract

This study discusses the use of precedents in Brazilian civil procedure and their capacity as a source of law. Initially, we present an overview of common law to identify its essential elements — namely ratio decidendi, distinguishing, obiter dictum, and overruling—and to verify their compatibility with the Brazilian legal system. The functions of Brazil’s higher courts are addressed, examining the transition from a model of persuasive jurisprudence to one of binding jurisprudence, particularly in the context of mass litigation, driven by the innovations introduced by the 2015 Code of Civil Procedure. The text explores the evolution and application of binding precedents, constitutional review, and the standardization of jurisprudence in Brazilian law, differentiating each of them in contrast to the common law system. The dissertation provides a synthesis of the current mechanisms for standardizing jurisprudence, first presenting those aimed at resolving identical and large-scale claims—such as the Incident of Resolution of Repetitive Claims (IRDR) and repetitive appeals—and then those designed for general cases, such as the Incident of Assumption of Competence (IAC) and the Appeal for Divergence. It also differentiates the binding nature arising from these institutes from these – constitutional review. The text also addresses the Theory of Norms, presenting it as a genre that encompasses rules and principles, and it points to Ponderation as a tool for identifying the best legal solution for process. Finally, the study compares the norm obtained from a judicial decision that transcends to other cases with the classifications of the general theory of law to identify the compatible hierarchical position in relation to the sources of law in the Brazilian legal system